AN ANATOMY OF AUSTRALIA'S LEGAL FRAMEWORK FOR BUSHFIRE.

• Date: 01 December 2022
• Author: McCormack, Phillipa C.

CONTENTS I Introduction II Understanding the Context for Australia's Legal Framework for Bushfire A Australia's Bushfire Regimes Are Changing B Australian Laws for Bushfire Have a Long History III Dissecting the Anatomy of Bushfire Law A Fire-Specific Laws (Ring 1) B Land Management Laws (Ring 2) 1 Land Use Planning and Building Controls 2 Native Vegetation and Private Land Management 3 Forestry Laws 4 Protected Area Management Laws 5 Indigenous Land and Fire Management C Legal Context (Ring 3) 1 Emergency Management Laws 2 Other Environmental and Natural Resource Management Laws 3 Climate Change Law 4 Common Law Liability Rules 5 Disaster Relief and Recovery 6 Public Health Law 7 Insurance Law 8 Property Law and Tenancy Rights and Obligations 9 Social Security and Consumer Lending Laws 10 Employment and Work Health and Safety Laws D Institutional Context (Ring 4) 1 Litigation Rules 2 Governing Emergency Management Coordination 3 Fiscal Arrangements and the Constitutional Division of Power IV Why Is This Analysis Important Now? V Conclusion I INTRODUCTION

Fires have always been a part of the Australian landscape, but climate change is driving rapid change in the frequency, geographic scale and severity of bushfires. (1) Changes to Australia's fire regimes present a dramatic increase in fire-related threats to human and natural values across the continent, a step change that was evident in the catastrophic 2019-20 'Black Summer' fire season. Australia's Black Summer bushfires were globally unprecedented in their size, severity and impact. (2) The area burnt, the intrusion of fire into subtropical and tropical forests and the radiative power of the fires had not been seen before in the historical record. (3)

The law has an important role to play in building resilience to climate-heightened bushfire risk. That role is embedded in the full breadth of arrangements for fire, including institutional and regulatory tools for improving preparedness for, responses to, and recovery from changing fire regimes across sectors, scales and actors.

Australia's framework of laws and policies relating to bushfire spans national, state and territory, and local scales. Some relate explicitly to fire, such as criminal laws about arson and legislation establishing fire agencies. Other laws and policies are indirectly relevant, such as protected area management laws and the ability of the Commonwealth executive to declare a state of emergency under the Constitution. (4) Laws with indirect application to bushfire are increasingly important in preparing for and responding to bushfire events, and in building or potentially undermining community resilience.

No existing scholarship defines the broad spectrum and operation of Australian laws and policies that can, together, be described as 'bushfire law'. Yet, having a bird's-eye view of the multitude of fire-related laws and policies in Australia is valuable, because post-fire reviews and inquiries consistently recommend reform but do not necessarily acknowledge broader, interacting legal instruments and obligations. (5) Furthermore, while efforts are underway to develop a clear and pragmatic research agenda about bushfire, (6) few researchers have dedicated specific attention to the broader roles of law in this area. (7) We cannot effectively respond to bushfire law reform recommendations without a clear understanding of the legal instruments and institutions that already govern our relationship with fire. Moreover, as catastrophic bushfires become more common and destructive, a clear map of the existing legal framework offers a useful starting point for understanding the stunning complexity (8) of Australia's bushfire laws and policies. The core task of this article is to fill this important gap in legal scholarship.

To map Australia's bushfire laws and policies across sectors, scales and jurisdictions, we have borrowed the concept of an 'anatomy' from the study of the human body. The science of anatomy is concerned with the bodily structure of living things, especially as revealed by dissection (the Greek term for 'anatomy' literally means 'to cut up'). (9) The term anatomy is also used in a more general sense to describe a study of the structure or internal workings of something. This concept provides a useful analytical lens because our goal is precisely that: to separate out the components of Australia's legal framework for fire so that we have a better understanding of its constituent parts. (10) Knowing the anatomy of this legal framework will better equip us to understand its physiology or 'function'--that is, how the different components of bushfire laws can work together to help prepare communities and environments for changing fire regimes.

The remainder of this article is structured in four parts. Part II provides an overview of the physical and climatic context for bushfires and the development of Australia's bushfire laws. In Part III, we present for the first time an 'anatomy' of Australia's legal framework for bushfire, using a novel conceptual model of its diverse, nested components. Part IV explains the significance of this analysis, including as a prerequisite to designing holistic law reform and understanding the limitations of law. In Part V, we conclude by acknowledging that bushfire is not a problem that law can 'solve', calling for greater attention to the role that law can play in tackling the challenges of a future that will be fundamentally shaped by our experience of fire.

II UNDERSTANDING THE CONTEXT FOR AUSTRALIA'S LEGAL FRAMEWORK FOR BUSHFIRE

The Black Summer was--in terms of area of land burnt--Australia's largest fire season ever. (11) But it may not hold that title for long because fire seasons are becoming more extreme, particularly in Australia's south-east, as the climate changes. (12) Australia's legal framework for bushfire has evolved over more than a century and must continue to evolve. In this part, we briefly explain the physical and climatic backdrop to Australia's changing fire regimes and the origins of Australian laws about bushfire as important context for the anatomical analysis of the legal framework that follows.

A Australia's Bushfire Regimes Are Changing

Australia is 'the most fire-prone continent on Earth'. (13) When European settlers arrived in Australia, Indigenous nations had maintained fire regimes for tens of thousands of years and landscape-scale burning formed a central part of Indigenous culture and lore. (14) Many of the landscapes that Europeans encountered had been shaped by fire, and many of Australia's ecosystems had adapted to survive and even flourish after bushfire. Colonisation abruptly changed these fire regimes, and likely contributed to the scale and extent of the destructive fires that have caused substantial economic and property damage and loss of life over the past 250 years. (15) Catastrophic bushfires in Australia have also been influenced by a range of other variables such as natural climate variability, including periods of severe drought and heatwaves, and changing land use, particularly the (ongoing) expansion of human settlements into urban fringes that are both high in biodiversity and some of the most fire-prone places in Australia. (16)

There is now clear evidence that fire regimes are changing in response to climate change. (17) Fire weather, fire activity and fire impacts have increased over recent decades in response to changes in mean climate conditions and the increasing frequency of extreme weather events such as drought and heatwaves. (18) On average, Australia's climate has warmed by 1.44 [+ or -] 0.24[degrees]C since 1910, and there has been a shift towards drier conditions across southern Australia since the late 1990s. (19) As a result, since the 1950s, dangerous fire weather has increased and fire seasons have lengthened, particularly in the south. (20)

Since the 1980s, against the backdrop of these warming and drying trends, the number of years between fires has decreased while the area burnt annually across Australia has increased. (21) There has also been a substantial increase in the frequency of forest mega-fires (fires that burn more than 1 million hectares) since 2000. (22) Recent studies demonstrate the extent to which climate change is contributing to these bushfire events. For example, Tasmania's 'Angry Summer' fires in 2012-13 were found to have been linked to the extreme summer heat, which was made five times more likely due to human influence on the climate. (23) The heat extremes associated with the 2019-20 bushfire season in southeastern Australia were shown to be at least two times more likely under anthropogenic warming and the Fire Weather Index was at least 30% higher than under natural forcings. (24)

The Black Summer fires had significant social, environmental and economic impacts. (25) Thirty-three lives were lost, and more than 3,000 houses destroyed by the fires, (26) while an estimated 417 deaths and 3,151 hospital admissions were attributed to smoke exposure. (27) Ongoing post-traumatic stress disorder and depression are expected to have long-term effects on fire-affected communities. (28) Impacts on water quality, soil conservation and threatened fauna and flora have also been widespread. For example, more than 23% of temperate forests in south-eastern Australia were burnt and, in New South Wales ('NSW') alone, more than 290 threatened fauna, 680 threatened flora species and 37% of the State's national park estate are thought to have been destroyed, injured or otherwise impacted by the fires, including 54% of the Gondwana Rainforests in the World Heritage Area. (29)

We can expect more seasons like this in the future. Extreme weather events such as heatwaves and droughts are projected to become more widespread, frequent and intense, (30) leading to more dangerous fire weather conditions. Opportunities for controlled hazard reduction burning are...